without conditions.76 Even if suit is laid in what would be a proper venue with the corporation as sole defendant, addition of other defendants may entitle them to a change; 77 and change cannot be avoided by asking judicial leave to amend by omitting such defendants, since the action of the court is thus invoked in the case,78 nor by impleading other defendants who reside in the county but are unrelated to the cause of action or are not served.79 Change will be made if the plaintiff selects his own residence but some condition necessary to support that venue is lacking.80 The principal defendant's privilege controls rather than that of formal or merely proper parties.81 In the federal

courts statutory provision is made for transfer to another division in the same district by agreement and for transfer when a new court is erected.82

There is nothing, apparently, peculiar to corporations in the law regulating the grounds and occasions for a change on account of prejudice, difficulty of getting a fair trial, or convenience. As to such grounds of change consult the local statutes and any standard work on practice.

§ 2984. Application and procedure. The ordinary procedure is by application or motion addressed to the court for an order for the desired change,83 and since answering waives the privilege 84 it should be made before answer, unless based on a ground like convenience of witnesses, in which case the answer must come in before it can be told what the issues will be or what witnesses will be needed.85 In New York the statute requires a demand on the adverse party for a change before moving, and such demand may be satisfied by amending the complaint and serving it as amended with a new and correct venue therein laid; 86 but if the demand is not complied with inside of the time allowed, then within a further time motion must be made to the court for the change.87 It may be pleaded to the jurisdiction as a matter of privilege in Texas, and perhaps other states.88 In the federal courts a case may be transferred to another division of the same district by stipulation of parties or on order of the court.89

82 United States Judicial Code, § 58, regulates transfer of causes by agreement to another division in the same district. Section 59 regulates transfer of causes on creation of a new district or division.

83 There must be an objection and claim of privilege or the failure to change venue is not error. Crystal River Lumber Co. v. Consolidated Naval Stores Co., 63 Fla. 119, 58 So. 129. See other cases cited in this section, infra.

84 See § 2978, supra.

85 Claim of change as a right must be made before answer time expires (Rev. § 425). Garrett & Co. v. Bear, 144 N. O 23, 56 S. E. 479.

Change for convenience of witnesses cannot be asked until after answer. Thomas v. Placerville Gold

Quartz Min. Co., 65 Cal. 600, 4 Pac. 641.

86 Conroe v. National Protection Ins. Co., 10 How. Pr. (N. Y.) 403.

87 Motion for change to the defendant corporation's principal place of business must be made within ten days after five days' demand (Code Civ. Proc. § 986). If not so made it is waived but a change on ground of convenience of witnesses may thereafter be granted. Duche v. Buffalo Grape Sugar Co., 11 Abb. N. Cas. (N. Y.) 233. See also Conroe v. National Protection Ins. Co., 10 How. Pr. (N. Y.) 403.

88 As to requisites of such a plea, see 3069, infra.

89 Any civil cause, at law or in equity, may, "On written stipulation of the parties or of their attorneys of

The application may be made and sworn to by a competent corporate officer.90 A showing of grounds is required unless change is a matter of right,91 and the burden is on the moving corporation defendant.92 In so far as the nature of the cause of action is material the complaint alone will be considered, but the affidavits and the answer, if any, may be considered on the questions of fact involved,93 or the certificate of incorporation may be used to show the place of business.94 The affidavits or plea should be positive and certain as to the material facts and should not leave inferences open which if true would defeat the right to the change.95 In those states where

the change to a privileged venue may be resisted, as where the court has discretion, or when a counter motion to retain the venue on grounds of convenience or other cause is made, the affidavits in support of such opposition or counter motion must fully and clearly show grounds for retention.96

The proper order is for a change to the right venue, and not a dismissal,97 and if the court inadvertently makes a wrong change, it can be set aside and the case recalled.98 After the change the action should proceed in the new venue like any other action, there being nothing about a corporate party to invoke a different procedure. Accordingly it has been held that a quo warranto by the prosecuting attorney, when changed, does not entail a substitution as relator of the prosecuting attorney of the new county.99

III. PROCESS, SERVICE AND APPEARANCE

§ 2985. Form and sufficiency of original process-In general. As an introduction to this subchapter it must be said again that the general law of process, service and appearance as applied in actions between natural persons underlies and forms a predicate for the law on the same subjects as applied to corporations. This work is not

helf v. Merchants' Bank, 33 S. D. 259, 145 N. W. 542.

A plea of privilege of venue should negative all the exceptional venues besides the one claimed, but matters shown by the petition need not be pleaded unless to deny them. Mangum v. Lane City Rice Milling Co.,

Tex. Civ. App. 95 S. W. 605. The jurisdictional fact of an agency to support a venue other than the corporate domicile must be established by plaintiff insisting on it. Cannel Coal Co. v. Luna, Tex. Civ. App. -, 144 S. W. 721.

The affidavit may be amended by permitting the president to swear to it instead of the attorney. Kelly v. A. B. Crouch Grain Co., Tex. Civ. App., 174 S. W. 630.

96 Where the court has power in discretion to change from the privileged venue, and a motion to change to it is made, a counter affidavit re

sisting the change to the place of defendant's business should show the inconvenience to be entailed by such change, names of witnesses, disclosure and advice of counsel. Crookston v. Centennial Eureka Min. Co., 13 Utah 117, 44 Pac. 714.

97 A change on demand to an improper county is error though on proper demand change could have been made to another county. Atlantic Coast Line R. Co. v. Spencer, 166 N. C. 522, 82 S. E. 851.

Dismissal will not be made because of a wrong venue but only a transfer to the proper one, if seasonably asked. Allen-Fleming Co. v. Southern R. Co., 145 N. C. 37, 58 S. E. 793.

98 Baker v. Firemen's Fund Ins. Co., 73 Cal. 182, 14 Pac. 686.

99 The suit is civil. Eel River R. Co. v. State, 155 Ind. 433, 57 N. E.

388.

the place to look for such general law. It must be sought in the statutes and in works on general practice, and it may be taken as a fair working assumption that the general law will apply to corporations along with such express provisions as the statutes may superadd and such further principles as the decisions herein contained have evolved on the subject. Although it has seldom arisen as a question, the rule seems clear that a corporation plaintiff may have any process which a natural plaintiff might have subject to the possible exceptions of process peculiar to an action which no corporation can maintain and of process, if any such there be, which issues by a method which no corporation is capable of invoking. No cases have been found, however, which adjudicate the point. Indorsement of the writ, or other like act to be done by the corporation, may be well done by its agent in its behalf.2 In modern practice its attorney represents it in such matters as causing the issuance of writs for it.3

The common-law method of coercing a corporation to answer to an action was by precipe quod reddat and distress on its lands and goods; it had no body to be taken on a capias or otherwise to be summoned into the jurisdiction. The reason for this method of process was found in the necessity for an actual appearance of the defendant before the court, and when actual appearance ceased to be requisite, the courts and legislatures were free to devise other and less circuitous process. The method devised was by summons.1 Chancery, unless the statute gave it, had no means of coercing an answer

1 May have an order of arrest against defendant in libel action. Knickerbocker Life Ins. Co. v. Ecclesine, 34 N. Y. Super. Ct. 76, aff'd 11 Abb. Pr. (N. S.) 385.

2 An indorsement of the writ in the corporate name "by" R. M. implies that he was agent of it and a statement of that fact need not be added. Middlesex Turnpike Corporation v. Tufts, 8 Mass. 266.

3 See $2933, supra, and see also § 1941, supra, as to power of attorney at law of corporation.

4 The common-law process was by precipe quod reddat (in nature of a summons) and was served on the head man or visible agent or chief clerk. On default of appearance there was

a distringas and distress infinite. Since formal appearance is dispensed with and defendant on being summoned is deemed to have appeared, distringas is no longer necessary. State Bank v. Van Horn, 4 N. J. L. 382. But this does not apply to courts of limited jurisdiction (justices of the peace) and if the precise manner of summons and service of same prescribed for them is not followed, they gain no jurisdiction without an appearance. Id.

It is not material whether corporation appears after service on president and cashier. Meriwether V. Bank of Hamburg, Dud. L. (S. C.) 36. A summons or venire facias in the first instance and then a distringas